TABLE OF CONTENTS

 Update on the Rule of Law for Human Rights in ASEAN:

The Path to Integration 1

I. Introduction 1

A. Rule of Law in ASEAN: From Rhetoric to Binding Obligations 2

B. Assessing the Rule of Law 3

II. Overview of ‘Rule of Law for Human Rights’ 4

A. The Concept of Rule of Law 4

B. Rule of Law in Human Rights Law 5

1. Rule of Law in Universal Human Rights Instruments and Treaties 5

2. Rule of Law in General Comments or Recommendations of Human

Rights Treaty-Bodies 6

III. Legal Commitments and Meaning-Making: Rule of Law Definitions

in ASEAN States 6

A. International Commitments to Uphold the Rule of Law for Human Rights 7

B. ASEAN Member States’ Understanding of the Rule of Law in Domestic

Laws and Policies 7

1. Definitions with Institutional Approaches 8

2. Definitions with Ends-Based Approaches 9

3. The ‘Socialist’ Rule of Law: Ideology-Based Definition 10

4. States in Transition: Rule of Law in Flux 11

IV. Country Practices on the Rule of Law for Human Rights 12

A. Central Principle I – The Government and its officials are accountable

under the law 12

1. Definition and Limitation of the Powers of Government in the

Fundamental Law 12

a. Lack of separation of powers 12

b. Undue Interference By one Branch of Government with Another 13

c. Problems with Judicial Review, including Immunity 14

2. Amendment or Suspension of the Fundamental Law 14

a. Extra-Constitutional Partial Cancellation of Fundamental Law 14

b. Prolonged ‘State of Emergency’ and Derogation of Rights 15

3. Laws Holding Public Officers and Employees Accountable 16

a. Promulgation of Anti-Corruption Laws

b. Establishment of Institutions against Misconduct 16

c. Actual Prosecutions under Laws relating to Accountability 17

4. Special Courts and Prosecutors of Public Officers and Employees 17

a. Lack of Special Courts and Prosecutors in Many States 17

B. Central Principle II – Laws and procedure for arrest, detention and

punishment are publicly available, lawful and not arbitrary 18

1. Publication of and Access to Criminal Laws and Procedures 18

a. Launch of New Online Platforms To Publish Laws 18

2. Accessibility, Intelligibility, Non-retroactivity, Consistency, and

Predictability of Criminal Laws 19

a. A ‘Language Problem’ Affecting the Intelligibility of Some Laws 19

b. Unwarranted Retroactive Applications Found 19

c. Unpredictability and Inconsistency of Some Decisions 19

3. Preventive Detention and Rights of the Accused 20

a. Mixed Positive and Negative Changes in Law that Affect Rights of the

Accused in Many States 20

b. Allowed Preventive Detention in Some States 21

c. Other Controversial Issues on the Rights of the Accused 21

C. Central Principle III – The Process by which the Laws are Enacted and

Enforced is Accessible, Fair, Efficient, and Equally Applied 23

1. Law Enactment 23

a. Positive and Negative Developments on Access to Law Enactment 23

2. Law Enforcement 23

a. Inordinate and Patchy State of Law Enforcement Amongst ASEAN States 23

D. Central Principle IV – Justice is Administered by a Competent, Impartial and

Independent Judiciary and Justice Institutions 24

1. Appointment and Other Personnel Actions in the Judiciary and the Prosecution 24

a. Mixed Positive and Negative Changes in Law that Affect Appointment and

Other Personnel Actions in the Judiciary and the Prosecution 24

2. Professional Development of the Judiciary and the Prosecution 25

a. New or Developed Institutions on Judicial and Prosecution Training 25

b. No regular or Systematic Training Curriculum in a State 26

3. State’s Budget Allocation for the Judiciary and Other Principal Justice

Institutions 26

a. Reports of Continued Low Budget Levels for Justice Institutions in

General that Affect ependence